In Brown & Brown of Florida, Inc. v. Houligan’s Pub & Club, Inc., 51 Fla. L. Weekly D49b (Fla. 5th DCA Jan. 2, 2026), an action was brought against an insurance broker after it was determined that insured's claims for hurricane damage were not covered by the procured policy. The loss involved sewage entering several restaurant properties through floor drains after Hurricane Matthew, causing substantial damage, which was ultimately found by a separate declaratory judgment action that the policy did not provide coverage for these types of damages. The appellate court ruled that proof of available insurance in the marketplace was not required for recovery for breach of fiduciary duty and negligent misrepresentation claims. The court reasoned that an insurance agent or broker who agrees or undertakes to procure certain insurance coverage owes his principal a duty to do so within a reasonable time. When the agent fails to do so, even if the agent is not to blame for the failure, he may nevertheless become liable for damages if he fails to inform his principal that the requested insurance has not been procured.
Applying this principle, the court found that a reasonable jury could find that even if the insurance the insured wanted was unavailable in the marketplace, the insurance broker should have timely notified the insured of that fact so that it could consider its alternatives. So on this basis, the appellate court concluded that the insured would be entitled to damages and remanded the case for a new trial on damages only.
This case makes clear that insurance agents and brokers need to be upfront with insureds on what a policy does and does not cover. Failing to do so exposes that insurance agent or broker to damages.
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